Shortell v. New York State Unified Court System

Filing 17

MEMORANDUM DECISION AND ORDER, deft's 10 Motion to Dismiss for Lack of Jurisdiction is granted, and leave to amend is denied. (Ordered by Judge Brian M. Cogan on 8/1/2012) c/m with Unpublished Decision sent by chambers. Fwd. for Judgment. (Galeano, Sonia)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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)(

ALLEN SHORTELL,

MEMORANDUM
DECISION AND ORDER

Plaintiff,
12 Civ. 0534 (BMC)(LB)
-againstOFFICE OF COURT ADMINISTRATION,
Defendant.

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)(

COGAN, District Judge.

Plaintiff, proceeding prose, brought this action under Title I of the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq., ("ADA"), the Family and Medical Leave
Act of 1993,29 U.S.C. §§ 2601 et seq., ("FMLA"), and the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA''). He alleged that he was denied a position as a
Court Officer with the State of New York in retaliation for taking medical leave. Defendant has
moved to dismiss, and the motion must be granted.
As defendant has correctly pointed out, the Eleventh Amendment bars claims against the
States and their agencies under the ADA, ADEA, and FMLA. See Coleman v. Court of Appeals
ofMd., 132 S. Ct. 1327 (2012); Bd ofTr. ofthe Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.
Ct. 955 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000). Although
plaintiff has opposed defendant's motion, he does not contend otherwise. Instead, he asserts for
the first time that he has viable claims under Title II of the ADA, Title VII of the Civil Rights
Act of 1964, and the First, Fourth, and Fourteenth Amendments to the United States

Constitution. Given plaintiff's pro se status, the Court construes this response as a motion to
amend the complaint to assert those claims.
As always, this Court construes a prose litigant's pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights
violations. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007); Sealed Plaintiffv.
Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). Courts must read prose papers with
"special solicitude" and interpret them to raise the "strongest arguments that they suggest."
Triestrnan v. Fed. Bureau of Prisons, 470 F.3d 471,474-76 (2d Cir. 2006) (internal quotation
marks omitted). However, even under this standard, plaintiff's motion to amend must be denied
because his proposed amendments would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (although Rule 15(a) of the Federal Rules of Civil Procedure mandates that leave
to amend be freely given when justice so requires, leave must be denied when the proposed
amendment would be futile).
First, this Court finds that Title II of the ADA does not apply to claims of the denial of
employment based on disability, since those claims fall exclusively under Title I. Courts all over
the country are divided on this issue, and the status of the law on this point is particularly divided
among district courts within this circuit, since the Second Circuit has yet to weigh in. Compare
Emmons v. Citv Univ. ofN.Y., 715 F. Supp. 2d 394,408 (E.D.N.Y. 2010) (holding that
employment discrimination claims may not be brought pursuant to Title II of the ADA); and
Fleming v. State Univ. ofN.Y., 502 F. Supp. 2d 324 (E.D.N.Y. 2007) (same); with Transp.
Workers Union of Am., LocallOO v. N.Y.C. Transit Auth., 342 F. Supp. 2d 160, 175 (S.D.N.Y.
2004) (finding that Title II covers employment discrimination). This Court agrees with the
reasoning set forth by the Ninth Circuit in Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169

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(9th Cir. 1999), and the district courts within this Circuit that have adopted the Zimmerman
Court's approach. As the Zimmerman Court stated, "when viewed as a whole, the text, context
and structure of the ADA show unambiguously that Congress did not intend for Title II to apply
to employment." Id. at 1178. Plaintiff therefore may not circumvent the Eleventh Amendment's
preservation of sovereign immunity as to Title I claims by asserting such claims under Title II.
See Sworn v. W. N.Y. Children's Psychiatric Ctr., 269 F. Supp. 2d 152, 157 (W.D.N.Y. 2003).
It would thus be futile for plaintiff to amend his complaint to bring claims under Title II.

Nor does plaintiff have a claim under Title VII. The factual basis of his asserted claim
appears to be that, in violation 28 U.S.C. § 1738, he was required to disclose a prior criminal
record in New Jersey even though New Jersey had expunged that record, and that the record was
the basis for denying him employment. It is doubtful that this would be actionable under any
statute, certainly not 28 U.S.C. § 1738, but it is clearly not actionable under Title VII. 1
To the extent plaintiff is attempting to bring a disability discrimination claim under Title
VII, this theory also must fail. Title VII prohibits discrimination against only those individuals
who fall into protected classes based on their race, color, religion, national origin, or sex. See 42
U.S.C. 2000e-2(a)(l). Title VII does not refer to disability, and courts have accordingly held that
the statute offers no protection against discrimination on the basis of disability. See. e.g., Risco
v. McHugh, No. 10-CV-6314, 2012 WL 2161115, at *16 (S.D.N.Y. June 14, 2012).

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Plaintiff also claims that Title VII protects his right, as a veterao, not to be "bypassed" in favor of a "non-vet" by
the federal government. Title VII does not protect this right. Plaintiff appears to be referring to his rights under the
Veteraos Employment Opportunities Act ("VEOA"), which provides "preference eligible veteraos with a method for
seeking redress where their veteraos' preference rights have been violated in hiring decisions made by the federal
government." Kirkendall v. Dep't of Army, 479 F.3d 830, 837 (Fed. Cir. 2007). However, a veterao may not sue in
federal district court under the VEOA without first filing a complaint with the Secretary of Labor and appealing the
alleged violation to the Merit Systems Protection Board. See 5 U.S.C. § 3330a; Conyers v. Rossides, 558 F.3d 137,
148-49 (2d Cir. 2009). Despite having exhaustively detailed the incident that forms the basis of this complaint,
plaintiff does not allege that he sought administrative review of his VEOA claim. Leave to amend on this ground is
therefore denied.

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Finally, plaintiff's purported claims under the First, Fourth, and Fourteenth Amendments
are unsustainable, and leave to amend the complaint to bring these claims is therefore denied.
The only mechanism for bringing a lawsuit under these amendments is 42 U.S.C. § 1983, and the
Eleventh Amendment shields defendant from all lawsuits brought under§ 1983. See. e.g., Bland
v. New York, 263 F. Supp. 2d 526, 534-35 (E.D.N.Y. 2003). Even if defendant was not entitled
to Eleventh Amendment immunity, there is nothing in plaintiffs complaint or his opposition to
this motion which would give rise to a § 1983 claim under the First, Fourth, or Fourteenth
Amendments.
To state a claim of discrimination under the Equal Protection Clause of the Fourteenth
Amendment, a plaintiff must allege that a government actor intentionally discriminated against
him on the basis of his membership in a protected class. See Linder v. City of New York, 263 F.
Supp. 2d 585, 592 (E.D.N. Y. 2003). Plaintiff does not allege that he is a member of a protected
class. Although he impliedly asserts that he is disabled, the Supreme Court has made clear that
"[d]isability is not a protected class." Bd. ofTrs. ofUniv. of Ala. v. Garrett, 531 U.S. 356, 366,
121 S. Ct. 955 (2001). Likewise, the facts do not appear to give rise to claims under the First or

Fourth Amendment. Plaintiff has alleged no searches or seizures that could have violated the
Fourth Amendment, and does not allege that he engaged in, or was punished by his employer for,
any protected speech. See generally Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S.
274,97 S. Ct. 568 (1977); United States v. Simmons, 661 F.3d 151 (2d Cir. 2011). Leave to
amend to bring these § 1983 claims is therefore denied.

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Accordingly, defendant's [10] motion to dismiss is granted, and leave to amend is denied.

SO ORDERED.

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Dated: Brooklyn, New York
August 1, 2012

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